Justia U.S. 9th Circuit Court of Appeals Opinion Summaries

Defendant appealed from the sentence imposed by the district court following his guilty plea to one count of attempted reentry after deportation. At issue was whether the district court committed reversible error by applying a 16 level increase to the offense level pursuant to U.S.S.G. 2L1.2(b)(1)(A)(ii). The court held that defendant failed to satisfy the applicable plain error standard of review with respect to the district court's determination that he was previously convicted of a "crime of violence," namely, "statutory rape." The court also held that the district court did not otherwise abuse its discretion or impose a sentence that was either procedurally erroneous or substantively unreasonable. Accordingly, the court affirmed the sentence entered by the district court where the district court provided a thorough explanation for its determination, appropriately responded to the various arguments made by defense, did not give undue weight to the Guidelines, and reasonably took into account defendant's prior record as well as several mitigating factors.

Petitioner appealed the BIA's decision rejecting the IJ's conclusion that petitioner met the seven years of continuous residence requirement by finding that she was admitted in any status on the day she became the beneficiary of an approved I-130, Petition for Alien Relative. Instead, the BIA determined than an alien with an approved Form I-130 and a pending adjustment of status application only had a pending application of admission and was therefore, not admitted in any status. Therefore, the BIA concluded that petitioner did not meet the seven years of continuous residence requirement for cancellation of removal. The court held that an approved Form I-130 did not confer admission status on an undocumented alien for purposes of showing seven years of continuous residence under 28 U.S.C. 1229b(a)(2). The court also held that an approved Form I-130 petition merely provided an undocumented alien permission to apply for adjustment of status. Accordingly, the petition for review was denied.

Petitioner appealed the BIA's decision rejecting the IJ's conclusion that receiving an employment authorization document was comparable to being a participant in the Family Unity Program. Instead, the BIA found petitioner ineligible for cancellation of removal because he had not met his seven years of continuous residence, which it determined began on the date his application for adjustment of status was approved. The court held that the grant of employment authorization, pending the approval of adjustment of status to that of an LPR under 8 U.S.C. 1255 did not confer admission status as an undocumented alien for purposes of calculating seven years of continuous residence under 8 U.S.C 1229(a)(2). The court also held that employment authorization, under 8 C.F.R. 274a.12(c), merely allowed such alien the right to work while his or her application for adjustment was being adjudicated. Accordingly, the petition for review was denied.

Petitioner, a native of Guatemala, filed a petition of review of the Department of Homeland Security's decision to reinstate an immigration judge's 1989 order of deportation pursuant to post-Illegal Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), 8 U.S.C. 1231(a)(5), reinstatement provision 241(a)(5). At issue was whether the reinstatement provision, enacted as part of the IIRIRA, applied retroactively to a petitioner who applied for discretionary relief prior to IIRIRA's effective date. The court held that the application of section 241(a)(5) was permissibly retroactive when it applied to such petitioners in light of Landgraf v. USI Films Prod. Accordingly, the court granted the petition for review in part and remanded for further proceedings. Because the court lacked jurisdiction to review agency determinations of eligibility for special rule cancellation of removal under section 203 of the Nicaraguan Adjustment and Central American Relief Act of 1997 ("NACARA"), however, the court denied the petition in part.

Petitioner appealed the Board of Immigration Appeals' ("BIA") determination that it did not have jurisdiction to accept an appeal filed one day late due to a post office error. At issue was whether the 30 day deadline for filing a notice of appeal with the BIA was jurisdictional. The court held that the 30 day deadline must be read as a claim-processing rule that was not jurisdictional. The court also held that, since the BIA erred as a matter of law in concluding that it lacked jurisdiction, the court must remand to the BIA to permit it to fully reconsider whether, under the circumstances presented, it would hear the appeal from the immigration judge's decision in this case. The court also concluded that all the BIA needed to do to avoid subjecting aliens to the risk of losing their appeals due to bad weather or delivery service error was to allow people to send notices of appeal over the internet.

Defendants, both Mexican citizens, were arrested and charged with illegal entry into the United States in violation of 8 U.S.C. 1325. Defendants appeared at a group plea hearing in the United States District Court for the District of Arizona as part of the district's Operation Streamline. At issue was whether the taking of guilty pleas at a large group plea hearing violated the Fifth Amendment right to due process where defendants contend that the record did not disclose that they voluntarily and understandably pleaded guilty. The court concluded that, because they were not faced with a silent record, defendants must demonstrate that any error in the proceeding or in the transcript was plain and affected their substantial rights. Namely, they must show a reasonable probability that, but for the error, they would not have entered their pleas. The court also held that, because defendants did not even suggest, much less show, that they would not have pleaded guilty if the plea hearing had been more individualized, it could not conclude that there was any plain error. Accordingly, the judgment was affirmed.

Petitioner, a native and citizen of El Salvador, petitioned for review of a decision of the Board of Immigration Appeals ("BIA") affirming an Immigration Judge's denial of his applications for asylum, withholding of removal, and protection under the Convention Against Torture. At issue was whether substantial evidence supported the BIA's determination that petitioner failed to show that he was persecuted on account of his membership in a particular social group. The court held that substantial evidence supported the BIA's determination where, although petitioner was not precluded from demonstrating membership in a particular social group as a former military officer, he failed to establish that any persecution was or will be on account of his membership in such a group.

Petitioner, a native and citizen of Vietnam, petitioned for review of the Board of Immigration Appeals' ("BIA") decision affirming an Immigration Judge's order of removal. At issue was whether petitioner's state misdemeanor conviction for rendering criminal assistance was a crime related to obstruction of justice and thus constituted an aggravated felony under the Immigration and Nationality Act ("INA"), 8 U.S.C. 101(a)(43)(S). The court granted the petition for review and held that petitioner's conviction lacked the necessary actus reus and was not categorically an obstruction of justice according to the definition provided in In Re Espinoza-Gonzalez. The court also held that nothing in the record of petitioner's conviction established that he provided assistance to an individual who was subject to a pending judicial proceeding or ongoing police investigation and therefore, his conviction did not qualify as obstruction of justice under the modified categorical approach.

Petitioner filed a pro se petition for writ of habeas corpus in federal district court alleging that his prolonged detention was unlawful. At issue was whether petitioner's bond hearing, provided under Casas-Castrillon v. Department of Homeland Security, violated due process. The court clarified that once an alien received a Casas bond hearing before an immigration judge ("IJ"), he could appeal the IJ's decision to the Board of Immigration Appeals ("BIA"). If the alien was dissatisfied with the BIA's decision, he could then file a habeas petition in the district court challenging his continued detention. The district court's decision on the habeas petition could then be appealed to this court. Therefore, the court remanded to the district court with instructions to dismiss petitioner's petition without prejudice where he did not exhaust administrative remedies before pursuing habeas relief.

Defendant was arrested and charged with illegal entry into the United States and appeared at a group plea hearing in the United States District Court for the District of Arizona as part of the district's "Operation Streamline." At issue was whether the taking of guilty pleas at a large group plea hearing violated a criminal defendant's rights protected by Federal Rule of Criminal Procedure 11 and the Fifth and Sixth Amendments. The court held that any Rule 11(b)(1) error was harmless where defendant would not have changed her plea of guilty if the magistrate judge had conducted sixty-seven separate advisements of rights and that, although the district court failed to comply strictly with Rule 11(b)(2), such failure was not plain error where the record reflected that defendant's plea was fully informed and the record did not demonstrate that such a plea would have changed if the magistrate had expressly inquired into the voluntariness of her decision. The court also held that the record did not suggest that defendant misunderstood her rights or involuntarily entered her plea and there was no question that this procedure complied with due process. The court further held that the plea hearing did not deprive defendant of her right to counsel where she was provided with adequate, even superior, representation by counsel and failed to demonstrate a reasonable probability that the result of the proceeding would have been different if counsel had not been temporarily separated from her during the group advisement. Accordingly, the court confirmed defendant's conviction and sentence.